State of Bombay vs Atma Ram Sridhar Vaidya

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: 22 of 1950

Decision Date: 25 January 1951

Coram: Hiralal J. Kania, Saiyid Fazal Ali, B.K. Mukherjea, N. Chandrasekhara Aiyar

In this case, the Supreme Court of India reported the judgment dated 25 January 1951 in the matter titled State of Bombay versus Atma Ram Sridhar Vaidya. The judgment was authored by Justice Hiralal J. Kania and the bench comprised Justice Hiralal J. Kania, Justice Saiyid Fazal Ali, Justice B.K. Mukherjea and Justice N. Chandrasekhara Aiyar. The petitioner was the State of Bombay and the respondent was Atma Ram Sridhar Vaidya. The decision is cited as 1951 AIR 157 and 1951 SCR 167 and has subsequently been referenced in many later cases, including R 1951 SC 174, E 1951 SC 270, R 1952 SC 350, R 1953 SC 318, R 1954 SC 179, RF 1956 SC 531, E&D 1957 SC 23, E&F 1957 SC 164, F 1958 SC 163, R 1959 SC 1335, RF 1962 SC 911, RF 1964 SC 334, R 1966 SC 1910, RF 1967 SC 295, R 1970 SC 852, R 1972 SC 2086, RF 1973 SC 2469, R 1974 SC 183, D 1974 SC 255, RF 1976 SC 1207, R 1979 SC 1925, RF 1981 SC 28, D 1982 SC 1029, RF 1982 SC 1315, R 1984 SC 444 and others. The issues addressed concerned the Constitution of India, Articles 21 and 22 (5), the duty of a detaining authority to communicate the grounds of preventive detention and to afford the detainee an opportunity to make a representation, whether the rights under Articles 21 and 22 (5) are distinct, the problem of vague grounds, the effect of not providing particulars at the time of detention or of providing them later, and the jurisdiction of the court to examine the sufficiency of the grounds. The statutory provision examined was Section 3 of the Preventive Detention Act, 1950.

The factual background set out that the respondent was arrested on 21 April 1950 under the Preventive Detention Act, 1950. On 29 April 1950 he was served with the grounds for his detention, which read: “That you are engaged and are likely to be engaged in promoting acts of sabotage on railway and railway property in Greater Bombay.” The respondent thereafter filed a habeas corpus petition contending that the ground was vague because it did not specify the time, place or nature of the alleged sabotage nor explain how he allegedly promoted it, and therefore his detention was illegal. While the petition was pending, the Commissioner of Police sent a further communication to the respondent providing additional particulars, namely that the activities described in the original ground had been carried out by him in Greater Bombay between January 1950 and the date of his detention and that he was likely to continue such activities. The High Court of Bombay observed that if these additional particulars had been supplied at the time the grounds were originally served on 29 April 1950, the court would probably have concluded that the grounds would have enabled the detainee to understand precisely what he was charged with and to make a proper representation, and the High Court accordingly released the respondent.

In this case, the respondent argued that the only grounds presented to satisfy the requirement of Article 22(5) were those given on 29 April 1950, and that those grounds did not enable him to make a proper representation. The respondent contended that this failure violated a fundamental right and contravened the statutory provisions, and that the detaining authority could not cure the defect by later expanding or clarifying the grounds. The Court held that, under section 3 of the Preventive Detention Act 1950, the satisfaction of the Central or State Government is the decisive factor, and that satisfaction cannot be questioned in court unless it is shown to be based on mala fides. The Court further explained that clause (5) of Article 22 bestows two distinct rights on a detainee: first, the right to be informed of the grounds for detention, and second, the right to be given the earliest opportunity to make a representation against the order. Supplying grounds that have a rational connection with the objects of section 3 fulfills the first right. However, the right to make a representation requires that the detainee receive sufficient information to enable a meaningful submission. If the initial grounds are insufficient, the detainee may request additional particulars that will allow a proper representation. An infringement of either of these rights permits the detained person to approach the court, and even if only the second right— the right to make a representation— is infringed, the detainee is entitled to be released.

Justice Patanjali Sastri and Justice Das, dissenting, observed that the authority to issue a detention order rests on the subjective satisfaction of the detaining authority, a condition that is purely mental and therefore beyond judicial scrutiny regarding the adequacy of the grounds. They argued that it would be inconsistent with the scheme of the law to allow the court to assess whether the communicated grounds are sufficient for the detainee to make a representation, because the grounds communicated are exactly those on which the order is based. Moreover, they held that Article 22(5) does not impose an independent obligation on the detaining authority to furnish the detainee with detailed particulars beyond what is necessary to inform him of the grounds. Consequently, they concluded that there is no requirement in the constitutional provision for the grounds to be judged by a court as adequate for an effective representation, and that no separate right obliges the authority to provide further details.

In this matter, the Court held that the provisions of article 22, clause (5) did not require the authority that issued a detention order to supply a statement of grounds that a court must later deem sufficient to permit an adequate representation. The Court further clarified that the latter part of clause (5) did not create a separate, independent right for the detained person, nor did it impose an autonomous duty on the detaining authority to give the detainee detailed particulars that would enable an effective representation. Applying these principles to the facts before it, the Court found that no fundamental right of the respondent had been violated and no constitutional provision had been breached. The respondent had been provided with sufficient particulars as soon as he objected that the original grounds were vague, and consequently the Court concluded that the respondent was not entitled to be released on the basis of that objection.

The Court explained that the “grounds” which must be communicated to a detained person as soon as possible are conclusions of fact rather than a full, exhaustive narrative of every fact. Such grounds must exist at the moment the order is made, and no portion of them may be withheld. Once the grounds have been communicated, no new grounds may be added; however, later communications may supply additional factual details that support the already-communicated conclusion, provided they do not introduce a new ground. The test, therefore, is whether the later communication merely states facts or events that were already considered in forming the original conclusion. As long as the subsequent information does not constitute a new ground, it does not infringe the two procedural rights of the detainee mentioned in article 22, clause (5). Nonetheless, the Court emphasized that the requirement to give the detained person the earliest possible opportunity to make a representation must not be ignored. If the communicated ground can be understood intelligently and is sufficiently definite to provide the material needed for a representation, it cannot be described as “vague.” The question of whether a statement is so vague or indefinite that it deprives the detainee of the earliest opportunity to represent himself is a matter for the court’s inquiry and is decided at the court’s discretion.

The appeal was brought under Article 132(1) of the Constitution against a judgment and order of the Bombay High Court dated 1 September 1950 in Criminal Application No. 807 of 1950. The facts and arguments of the parties were set out in the judgment. Counsel for the appellant, who was the Attorney-General, was assisted by counsel for the appellant’s assistant, and counsel for the respondent represented the other side. The judgment of the Supreme Court was delivered by Chief Justice Kania, Justice Fazl Ali, Justice Mukherjea and Justice Chandrasekhara Aiyar, with Chief Justice Kania authoring the main opinion and Justices Patanjali Sastri and Das delivering separate opinions. This appeal arose from a decision of the Bombay High Court that ordered the release of the respondent, who had been detained under a detention order made pursuant to the Preventive Detention Act (IV of 1950). The respondent’s history of detention began with his first arrest on 18 December 1948 under the Bombay Public Security Measures Act, 1948 (Bombay Act IV of 1947); he was released on 11 November 1949. He was arrested a second time on 21 April 1950 under the Preventive Detention Act, 1950, and on 29 April 1950 he was furnished with the grounds for his detention, which read: “That you are engaged and are likely to be engaged in promoting acts of sabotage on railway and railway property in Greater Bombay.” The respondent then filed a habeas-corpus petition on 31 July 1950, in which, after reciting his earlier arrest and release, he stated in paragraphs 6 and 7 that (6) after his release he had left Bombay and stayed in Ratlam and Delhi, and (7) on 20 April 1950 he returned to Bombay and was immediately arrested as described. He contended that the sole purpose of the Government in ordering his detention was not the preservation of public order or State security but the suppression of active trade-unionists belonging to the All-India Trade Union Congress. He argued that the ground furnished to him was “delightfully vague and does not mention when, where or what kind of sabotage or how the applicant promoted it,” and that it lacked the particulars required by the Preventive Detention Act, 1950. He further asserted that the appellant acted mala fide, for a collateral purpose beyond the scope of the Act, rendering his detention illegal and mala fide. When the petition was presented to the Court on 9 August 1950, the Court ordered that a notice be issued to the Commissioner of Police. Pending the disposal of the rule, the Commissioner, on 26 August 1950, sent a communication stating: “In pursuance of section 7 of the Preventive Detention Act, 1950 (Act IV of 1950), and in continuation of my communication No. 227 dated 29 April 1950, the following…”.

The Commissioner of Police communicated additional particulars concerning the grounds on which a detention order had been issued against the respondent pursuant to sub-section (1) of section 3 of the Preventive Detention Act, 1950. The communication stated that the activities described in the original grounds had been carried out by the respondent in Greater Bombay from January 1950 up to the date of his detention and that, in all probability, he would continue to engage in such activities. The Commissioner further directed that if, in light of these newly supplied particulars, the respondent wished to make a further representation against the detention order, he should address his representation to the Government of Bombay and forward it through the Superintendent of Arthur Road Prison, Bombay. On 30 August 1950, the Commissioner filed an affidavit opposing the respondent’s petition. In that affidavit, the Commissioner asserted that the objectionable activities had been conducted by the respondent between January 1950 and the date of his detention. The affidavit further alleged that, around January 1950, a proposal had been made to call a total strike on the Indian railways in March 1950, and that the respondent had taken a prominent part in efforts to bring about that strike and ensure its success. To achieve the strike and cause a complete cessation of work on all railways, the affidavit claimed that the respondent and his associates were advocating sabotage of railway lines and railway property in Greater Bombay. The Commissioner stated that reliable material, supplied by experienced police officers, had been placed before him indicating the respondent’s involvement in such sabotage activities. Although the proposed railway strike in March 1950 had not materialised, the affidavit added that the idea of effecting such a strike at the earliest convenient opportunity continued to be entertained, and that the respondent remained actively engaged in plans to bring about a future strike. The Commissioner further contended that disclosing additional facts relating to the detainee’s activities would be against the public interest. In paragraph 6 of the affidavit, the Commissioner specifically denied the claim that the respondent had been out of Bombay from his release in November 1949 until 20 April 1950; instead, it was stated that the respondent occasionally left Bombay but spent the majority of that period within the city. When the matter was placed before a bench of the High Court, the Court granted the respondent’s petition. In the judgment, Chief Justice Chagla observed that, based on the view taken in several cases under section 491 of the Criminal Procedure Code, the ground relied upon did not constitute a basis that would permit the detainee to make a representation to which he was entitled under both the Act and the Constitution. After considering the Commissioner’s affidavit, the Court further observed that it appreciated the fact that, after the Court’s earlier decision, the Government had decided to place all the material before the Court so that the Court could be satisfied that the detaining authority’s decision was not motivated by any ulterior motive and that ample material was available to justify the respondent’s detention.

In its discussion, the Court emphasized that it was necessary to be convinced that the authority which ordered the detention had acted without any hidden motive and that the authority possessed sufficient material to justify the detention of the applicant. The Court stated that it had examined the affidavit submitted by the Commissioner of Police together with the particulars supplied by Mr. Chudasama. The Court observed that, had these particulars been provided at the time when the grounds of detention were originally communicated on 29 April 1950, it was highly probable that the Court would have concluded that the grounds were adequate to enable the detainee to understand precisely the accusations against him and to make a proper representation.

The judgment further rested on an observation made by the Chief Justice, who raised a new and important question for consideration: whether the detaining authority was permitted to justify a detention by expanding or improving the grounds that had originally been given. The Court explained that the only grounds it was required to examine were those that had been supplied to the detainee on 29 April 1950 in compliance with article 22(5) of the Constitution. If those original grounds were insufficient to allow the detainee to make an effective representation, then a violation of his fundamental right had occurred, and a contravention of the statutory provisions had taken place. The Court held that such a violation could not be remedied by the detaining authority through later amplification or improvement of the grounds. The decisive moment for determining compliance with article 22(5) was the date on which the grounds were initially communicated—29 April 1950—not the later date of 26 August 1950 when better particulars were supplied.

The Attorney-General, representing the appellant, strongly objected to this approach. Noting that questions regarding the vagueness of detention grounds and the permissibility of furnishing supplementary grounds after the initial communication had been raised in various High Courts, the Court deemed it appropriate to articulate the general principles governing these issues. The Court recalled that the Constitution of India authorises both the States and the Central Government to enact legislation permitting preventive detention. To ensure that such legislation does not infringe the Fundamental Rights enshrined in Part III of the Constitution, article 22 delineates the permissible limits on laws that empower preventive detention. Article 22 prescribes the minimum procedural safeguards that any preventive-detention law must contain; when those safeguards are ignored, a detention that might otherwise be valid at its inception ceases to be “in accordance with procedure established by law” and therefore infringes the detainee’s rights guaranteed under articles 21 and 22(s) of the Constitution. In this manner, the subject of preventive detention was brought within the ambit of Fundamental Rights.

In the present case the Court was concerned only with clauses (5) and (6) of Article 22 of the Constitution, which provide that when a person is detained under any law that permits preventive detention, the authority that issues the detention order must, as soon as possible, communicate to the detainee the grounds on which the order was made and must give the detainee the earliest opportunity to make a representation against the order. Clause (6) clarifies that the authority is not required to disclose any facts that it considers to be against the public interest. The Court emphasized that the legislation under review was not emergency legislation; the powers of preventive detention conferred by the 1950 Act operate in addition to those contained in the Criminal Procedure Code, which provides for an inquiry or trial after preventive detention. By its very nature, preventive detention is intended to stop the commission of an offence or to prevent the detained person from achieving a particular objective. Consequently, the authority issuing the detention order may not always possess complete detailed information at the time the order is made, and the information it has may fall short of the legal proof required for a specific offence, although it may indicate a strong probability of an impending prejudicial act. Section a of the Preventive Detention Act therefore requires that the Central Government or the State Government be satisfied that, with a view to preventing a person from acting in any manner prejudicial to (i) the defence of India, the relations of India with foreign powers, or the security of India; (ii) the security of the State or the maintenance of public order; or (iii) the maintenance of supplies and services essential to the community, it is necessary to issue an order directing that the person be detained. Accordingly, before the Government can pass an order of preventive detention, it must be satisfied that the individual’s activities are directed against one of the three objects mentioned in the section and that it is necessary to prevent the person from acting in such a manner. The wording of the provision makes clear that the sole requirement is the satisfaction of the Central Government or the State Government on this point. While the objects to be defeated are specified, the specific methods, acts or omissions by which those objects might be achieved are not listed, because providing an exhaustive list is impossible. Nevertheless, the Government’s satisfaction must be based on some identifiable grounds, and there can be no satisfaction if there

The Court observed that a satisfaction of the Central Government or a State Government cannot exist without any factual basis. While it is possible for different individuals to disagree on whether particular facts are sufficient to justify that satisfaction, the satisfaction must be founded on reasons that a reasonable person can perceive as connected to the objects that the preventive detention law seeks to prevent. Consequently, a court may not inquire into the correctness of the satisfaction unless it is based on bad faith. The statutory language expressly excludes the assessment of whether the reasons are adequate in the opinion of anyone other than the Central or State Government. The judiciary is therefore not empowered to place itself in the position of the Government and to decide whether the Government would have reached the same conclusion. As has been generally noted, this determination is a matter of subjective judgment by the executive and cannot be replaced by an objective test applied by the courts. Moreover, preventive detention orders are frequently issued on the basis of information and material that might not satisfy the strict rules of admissibility under the Evidence Act, yet the law, mindful of administrative necessities, permits such material to be considered sufficient for the Government’s subjective decision-making.

Having established that an order of detention may be lawfully issued, the Court turned to the question of whether the detained individual is entitled to any participation in the process. The Constitution, in its chapter on Fundamental Rights, guarantees every citizen freedoms of movement, speech and other liberties, subject to the limitations enumerated in Part III. Specifically, Article 22(5) provides that a person detained under a preventive detention order must, as soon as possible, be informed of the grounds on which that order is based; otherwise the individual may remain in custody without any knowledge of why liberty has been taken away, a situation the Court described as unacceptable in a free democratic State. The Court further noted that merely disclosing the grounds is insufficient if the detainee cannot challenge the order. Accordingly, Article 22(5) also obliges the authorities to afford the detained person an early opportunity to make a representation against the detention order. The representation must be directed against the order itself because the grounds serve only as the basis for the Government’s satisfaction, which underlies the issuance of the detention order.

The Court explained that the grounds supplied to a detained person are merely the steps that led the Government to be satisfied that a detention order was warranted. Clause (6) of Article 22 provides a third provision. The drafters apparently foresaw that, when the authorities convey information to the detained individual, some facts might be withheld in the public interest. Consequently, Clause (6) leaves the authorities with a discretionary power to withhold such facts. The grounds forming the basis of the Government’s satisfaction must, when drafted, contain certain essential facts; however, they are generally deductions drawn from those facts rather than a full, detailed narration of every circumstance. This structure characterises Article 22, clauses (5) and (6) of the Constitution. The issue raised for consideration was what exactly must be set out in those grounds. It was contended that, irrespective of what is stated or omitted, the grounds must not be vague; that the Constitution envisions furnishing the grounds only once, so there is no occasion to provide additional particulars or supplemental grounds later; and that Article 22(5) does not confer upon the detained person a right to demand further particulars, nor does it give the authorities a right to augment the grounds after they have been supplied. The Court observed that much of the controversy stems from a rather loose interpretation of the language used in the discussion. It further held that the matter would become clearer if the rights conferred by Article 22(5) were first properly understood. The first part of Article 22, clause (5), guarantees the detained person the right to receive “the grounds on which the order has been made” as promptly as possible. The second right granted by the same provision is the entitlement to “the earliest opportunity of making a representation against the order.” It follows that the grounds referred to are those on which the detaining authority was satisfied that making the order was necessary. These grounds must therefore exist at the moment the order is issued. By their nature, the grounds are conclusions drawn from facts, not an exhaustive recital of every fact. The conclusions derived from the available facts will indicate which of the three categories of prejudicial acts the suspect’s activity is alleged to belong to. Those conclusions constitute the “grounds,” and they must be supplied to the detained person. No portion of such grounds may be withheld, nor may additional grounds be appended after the fact. The requirement is to provide the “grounds on which the order has been made,” and nothing less. The second right, to be given the “earliest opportunity of making a representation against the order,” is not limited merely to providing a physical opportunity, such as paper and pen. For a representation to be made, the detained individual must first have knowledge of the grounds on which the authorities based their satisfaction that detention was necessary.

It was held that the detained person had to be informed of the grounds on which the authorities were satisfied that making the detention order was necessary. Consequently, for a representation to be understandable and to meet the charges set out in those grounds, the information supplied to the detainee had to be sufficient to achieve that purpose. Normally, the “grounds,” understood as the conclusions drawn by the authorities, indicated the type of prejudicial act with which the detainee was suspected; such an indication was enough to enable the detainee to formulate a representation describing his innocent conduct and to dispel the suspicion. Of course, if the detainee also received the detailed facts underlying those conclusions, he would be in a still better position to address the allegations. The clause, however, did not require that both the grounds and the detailed facts on which they were based be furnished simultaneously. Moreover, the law did not prescribe a specific time within which a representation had to be made after the grounds were supplied. This omission was intentional, because the circumstances of each case varied and it was impossible to fix a uniform time limit for exercising either of the two rights. Accordingly, although the right to receive the grounds and the right to make a representation were distinct and to be exercised at different times, they remained interconnected. Without receiving sufficient information to prepare a representation, the detainee could not make a meaningful representation; the right would be merely illusory and not a real right. While the right to receive the grounds was independent, it was deliberately linked to the right to make a representation. The connection did not preclude the possibility of further communication between the furnishing of the grounds and the exercise of the representation right. The Court emphasised that once the grounds had been conveyed to the detainee, no additional grounds could be added. The grounds constituted the heads of satisfaction for the Government in passing the detention order, and any later addition would either be a ground that had not been part of the Government’s satisfaction or would breach Article 22(5) by failing to convey the original grounds “as soon as may be.” This, however, did not oblige the authorities to disclose every fact leading to the conclusions at the same moment the grounds were communicated. The underlying facts needed to be available to the Government, but there could be delay or difficulty in gathering precise data, or it might not be practical to set out all facts in the initial communication. A second communication might therefore supply all or some of the facts on which the original conclusion was based, without introducing a fresh ground for the detention. The test, therefore, was whether the later communication merely presented facts already considered in reaching the original conclusion, rather than furnishing a new ground for the order.

In this case, the Court explained that when the grounds for detention are communicated to the detainee, the underlying facts on which the conclusion in those grounds is based must be available to the Government. The Court recognised that there may be occasions when there is a delay or difficulty in gathering the precise data, or when it is not convenient to set out every fact in the initial communication. If a second communication later supplies only some or all of the facts that support the conclusion already expressed in the first set of grounds, and does not introduce any new conclusion of fact, then it is clear that no fresh ground for the detention is being provided. Accordingly, the test is whether the later notice contains a statement of facts or events that were already taken into account when the original conclusion was formed. Should the later communication present facts that lead to a conclusion different from the original ground, those facts cannot be treated as supporting the detention because they constitute “new” grounds. The Court noted that the expression “new grounds” is more appropriate than “additional grounds,” which could cause confusion.

The Court then turned to the question of timing. It observed that, if a second communication becomes necessary, the relevant provision, article 22(5), sets out two distinct time requirements. The first requires that the grounds be supplied “as soon as may be,” which permits the authorities a reasonable period to formulate the grounds on the basis of the material presently in their possession. The Court explained that the time needed to prepare proper grounds will vary from case to case because the activities that give rise to detention may differ in duration, scope, or number of persons involved. Although the provision does not expressly mention a second communication, the structure of the clause—linking two rights with the word “and” and using the separate phrases “as soon as may be” and “earliest opportunity”—suggests two separate temporal factors: one for furnishing the grounds and another for allowing the detainee to make a representation. Consequently, the possibility of a second communication after the initial furnishing of grounds is not excluded, provided that such communication is not regarded as violating the “as soon as may be” requirement. Moreover, the second communication must not create a new ground that could be taken as the basis for the Government’s satisfaction with the detention order.

In our opinion, once the two conditions previously identified are satisfied, the objection that a later communication of details or facts infringes the requirement of article 22(5) is not sufficient to establish a breach of that provision. The Court explained that the question must also be examined from another angle. As noted earlier, the purpose of furnishing the grounds for a detention order is to enable the detainee to make a representation, that is, to give him an opportunity to put forward his objections against the order of detention. Accordingly, the phrase “the earliest opportunity” must be provided to him for that purpose. While the grounds of detention constitute the main factors on which the Government’s subjective decision is based, any other material on which the conclusions in those grounds are based should likewise be conveyed to the detained person so that he can formulate his objections. In other words, the detaining authority first makes its decision and issues its order; thereafter the detained person is given an opportunity to urge his objections, which in cases of preventive detention necessarily occurs at a later stage. The Government may have considered the grounds sufficient to pass its judgment, but to enable the detained person to make his representation against the order, further details may be furnished to him. In our view, this practice reflects the true measure of the procedural rights of the detained person guaranteed under article 22(5), because it ensures that both the principal grounds and any supporting material are available to the detainee for the purpose of making an effective representation.

The Court also considered the arguments raised concerning article 22(6). It was submitted that the authority may withhold facts which it deems undesirable to disclose in the public interest, and that consequently all other facts must be disclosed. The Court held that such a conclusion does not follow from the wording of article 22(6). The provision grants the detaining authority a right not to disclose certain facts, but that right does not create an obligation to disclose every fact that is not expressly withheld on that ground, nor does a failure to disclose such facts automatically constitute a breach of a fundamental right. The provision therefore leaves a wide latitude to the authorities in the matter of disclosure and accords them a special privilege regarding facts considered undesirable for public disclosure. With respect to the remaining facts, the authority has a duty to disclose them so as to give the detained person the earliest opportunity to make a representation against the order of detention. On behalf of the respondent, it was argued that if the grounds of detention are vague or insufficiently clear, the detainee will be denied the earliest opportunity to make a representation, and that such a defect would affect the satisfaction on which the order of detention was based. It was further submitted that, just as a ground that is completely irrelevant is, in law, no ground at all, a similarly defective ground could

The Court observed that a ground which fails to satisfy a reasonable person of the necessity for detention cannot by itself render the detention order void simply because it is vague or insufficient to allow the detainee to make a representation. The Court found that argument to be unsound. It held that even if a ground is substantively valid, its formulation may contain some indefiniteness. The Court explained that, provided there is at least some connection between the ground and the detention – that is, the ground is not wholly irrelevant or incapable of convincing a reasonable person – the question of whether such a ground can generate the satisfaction required for the detention order lies beyond the scope of judicial inquiry. Conversely, the Court stated that the issue of whether the vagueness or indefinite nature of the statements given to the detained person deprives him of the earliest opportunity to make a representation is squarely within the court’s jurisdiction and must be decided by it. The Court rejected the analogy drawn between a ground that bears no relation to the order at all and a ground that, while apparently related, is expressed in an imprecise manner, deeming the comparison faulty.

Furthermore, the Court rejected the extreme view that there is no link whatsoever between the ground that must be furnished and the detainee’s right to a representation under article 22 (5). It emphasized that the purpose of providing the ground is to enable the detainee to exercise the right of representation. Accordingly, the Court held that while there is indeed a connection between the authority’s duty to supply the grounds and the detainee’s right to an early opportunity to object, the standards applicable to the content of the grounds for these two purposes differ. For the authority, the test is whether the ground is sufficient to satisfy the authority’s own requirement for detention; for the detainee, the test is whether the ground is sufficient to allow him to make his representation at the earliest opportunity. The Court criticized the respondent’s argument for conflating the two distinct rights created by article 22 (5) into a single indivisible right, noting that the wording of the provision – particularly the conjunction “and” and the phrase “as soon as may be” – indicates that the obligations are separate. The second right, being a right of objection, must first be supported by the service of the grounds on which the authority’s satisfaction is based, and only then can the detainee rely on it to make a representation.

The right to be informed of the grounds first depends on the proper service of the reasons on which the Government’s satisfaction that detention is necessary is based. The two rights mentioned in Article 22(5) are linked only to the extent that the service of such grounds enables the detainee to exercise his second right. When the authorities supply grounds that have a rational connection with the purposes enumerated in section a of the Act, the first requirement of disclosure is satisfied. If those grounds are nonetheless inadequate to permit the detainee to make an effective representation, the detainee may rely on his second right and may, if he wishes, request further particulars that will enable him to present his objection. A violation of either of the two rights gives the detained person a statutory remedy to approach the court and claim that his fundamental right has been infringed. Moreover, even if the infringement concerns only the second limb of Article 22(5), the court is bound to order the detainee’s release. The Court emphasized that it is incorrect to treat the two limbs of Article 22(5) as a single, indivisible right, because the language and the purpose of the provision clearly distinguish them.

The Court then examined the allegation that the grounds supplied were vague. It explained that “vague” cannot be defined in absolute terms but is essentially the opposite of “definite”; a ground is vague if it cannot be understood or defined with sufficient certainty. The determination of vagueness must vary according to the facts and circumstances of each case and cannot be concluded merely because the detainee can deny the allegation. The ground must be intelligibly understood and sufficiently definite to provide the detainee with material to make a representation; otherwise it cannot be called vague. The only possible argument is that the language of the ground is so general that it prevents the detainee from meeting the charge, leaving him able only to say that he did not act as broadly described. In such situations, the detainee may contend that the general language denied him the earliest opportunity to make a representation against the order of detention. The Court further noted that the representation contemplated in the second limb of Article 22(5) must be capable of yielding relief to the detainee when considered. Finally, the Court observed that the contention that supplementary grounds cannot be supplied after the initial disclosure requires careful analysis, because the term “supplementary” may encompass various forms of additional information.

The Court explained that “supplementary grounds” may refer to several different situations. One situation is the addition of entirely new grounds to the original grounds, or the provision of further particulars of facts that have already been mentioned, or the addition of facts that go beyond those originally stated in order to reach the same factual conclusion that was originally furnished. The Court held that if “supplementary grounds’’ means additional grounds – that is, new conclusions of fact that are required for the Government to be satisfied that detention is necessary – then furnishing any such additional grounds after the original communication would violate the first right guaranteed by article 22(5). This is because the grounds for a detention order must be placed before the Government at the time it decides that the order is required, and all such grounds must be supplied as soon as possible. The Court then distinguished this from other aspects of a second communication that it described as “supplemental grounds’’ but which merely provide particulars of the facts already indicated in the first communication, or which add further incidents that, when taken together with the original facts, lead to the same factual conclusion originally supplied. The Court said that these are not new grounds within the meaning of the first part of article 22(5). Consequently, while truly additional grounds cannot be supplied after the initial furnishing, the other types of information may be supplied later, provided they do not deprive the detained person of the earliest opportunity to make a representation. In such cases, no infringement of either of the rights in article 22(5) occurs. The Court further observed that this analysis shows preventive detention itself does not by itself infringe any fundamental right in Part III of the Constitution, subject, of course, to the limitations laid down in clause (5) of article 22. That clause, forming part of Part III, carries the same force as any other fundamental-right provision. Because the clause prescribes two requirements – the duty of the detaining authority to furnish grounds and the duty to give the detained person the earliest opportunity to make a representation – the timing of each requirement is necessarily flexible. The Court noted that there is no explicit provision requiring a second communication from the detaining authority, since in many cases a second communication may be unnecessary. The essential point, the Court concluded, is that the authorities must fulfil their duty to furnish the grounds for detention while also ensuring that the detained person receives the earliest possible chance to make a representation.

In this matter, the Court observed that the duty imposed by clause (5) of article 22 requires the detaining authority to order detention “as soon as may be” and also to give “the earliest opportunity to the detained person to make a representation.” The Court explained that there is no restriction on the number of communications that may be sent from the detaining authority to the detainee; there may be one communication or several, and they may be transmitted at different times, provided that both elements of the statutory duty are fulfilled in a manner consistent with the language of clause (5). The Court further clarified that later communications do not violate the detainee’s procedural rights as long as they do not introduce a new ground for detention. Such subsequent notices may merely repeat or elaborate upon facts or particulars that relate to the original grounds already supplied.

The Court stressed, however, that even when the content of later communications is limited to reiterating the original grounds, the requirement to give the detainee the earliest opportunity to make a representation must not be ignored. This requirement, the Court said, follows directly from clause (5) of article 22. The Court then turned to the record of cases that had come before it and noted a pattern of unnecessary obscurity in the way detaining authorities described the grounds for detention. Rather than providing the detainee with reasonably detailed information, the authorities often used the bare minimum of words, thereby reducing the clarity of the grounds. The Court described this practice as deplorable.

The Court aligned itself with the observation of the High Court of Bombay, which had expressed distress over the vague and unsatisfactory nature of the grounds furnished to detainees. The High Court had remarked that in almost every case the grounds could have been expressed more fully and more clearly without harming the public interest. While the Constitution permits the Government to withhold certain facts in the public interest, the wording of article 22(5) creates a clear obligation to convey to the detainee all material that is necessary for him to make an effective representation. The Court noted that the Preventive Detention Act itself does not always provide a mechanism for an independent authority or advisory board to consider such representations.

Given this situation, the Court emphasized that any communication intended to enable the detainee to make a representation must be as complete and adequate as the circumstances allow, and must be made as soon as practicable, while still respecting the privilege of non-disclosure of facts that are undesirable to reveal in the public interest. Any departure from this requirement, the Court held, amounts to a departure from the intention of article 22(5). Consequently, the Court observed that, applying the standards it has set out, many communications sent to detainees have been found deficient, leading to the invalidation of the corresponding orders of detention.

In this case, orders of detention were declared invalid. Considering the principles set out earlier, the Court examined whether the High Court’s judgment was correct. The Court noted that it had already observed that the High Court’s summary dismissal of the later communication, based only on the proposition that all relevant material must be provided to the detainee at the time the grounds are first communicated, was unsound. The Court explained that it had identified the specific circumstances and conditions under which a later communication could be regarded as falling within the scope of article 22(5) of the Constitution, or could be excluded from it. Regarding the issue of the initial communication of the grounds, the High Court had held that “This is not a ground which would enable the detainee to make a representation to which he is entitled both under the Act and under the Constitution.” In the present matter, the communication dated 26 August 1950 was transmitted after the respondent had filed his petition and appeared intended to rebut the respondent’s claim that he had not been in Bombay between January and April 1950, as he asserted in his affidavit. Chief Justice Chagla observed that, had those particulars been furnished on 29 April 1950, the court would very likely have dismissed the petition. Nevertheless, the High Court released the respondent on the basis that, in its view, no further communication was permissible after 29 April. The Court now holds that this view was erroneous. On the facts before it, the Court is of the opinion that the respondent’s petition should have been dismissed, and consequently the appeal is allowed.

Justice Patanjali Sastri, while concurring with the order that the appeal be allowed, expressed disagreement with the majority’s interpretation of article 22, clause (8), as reproduced in section 7 of the Preventive Detention Act, 1950. He framed the principal question as whether the court has the competence to scrutinise the grounds communicated to a person detained under the Act to determine whether they are sufficient to enable that person to make a representation to the detaining authority, and, if they are not sufficient, to direct the person’s release. He referred to the settled position from the majority decision in Gopalan’s case, that article 21 applies to preventive detention except to the extent that the provisions of article 22(4) to (7) expressly or by necessary implication exclude its operation, thereby mandating that no person may be deprived of personal liberty even for preventive purposes except in accordance with procedure established by law. He noted that part of the required procedure is set out in the Constitution itself in clauses (5) and (6) of article 22, which provide that when any person is detained under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order, and that nothing in clause (5) requires the authority to disclose facts it considers against the public interest.

An order issued under any law that provides for preventive detention must, according to clause (5) of article 22 of the Constitution, be communicated to the detained person as soon as possible, and the authority must give the person the earliest opportunity to make a representation against the order. Clause (6) adds that the authority is not required to disclose any facts that it considers to be against the public interest. If these procedural requirements are not satisfied, the detention may be held unlawful because it would constitute deprivation of personal liberty without the procedure established by law. Consequently, the Court must examine what article 22(5) requires and whether those requirements have been met in the present matter. The respondent argues that clause (5) provides two safeguards: first, that the grounds for detention must be communicated promptly, and second, that the detainee must be given the earliest chance to make a representation. Because no trial is held in preventive detention cases, the right to make a representation is presented as the only occasion for the detainee to contest the accusation and prove his innocence. The communication of the grounds is intended to notify the detainee of the matters he must meet in his representation. Therefore, the grounds must give a sufficient indication of the nature and extent of the information on which the action is based, and must contain adequate particulars of the time and place of the alleged acts, so that the detainee can make an effective representation to the extent of his ability. If the grounds are vague and fail to disclose the substance of the information underlying the detention, the procedure prescribed by article 22(5) has not been truly complied with, and the detention must be considered unlawful. In other words, the adequacy of the grounds for enabling the detainee to make an effective representation is a justiciable question in every case. The Court notes that this issue was settled in Gopalan’s case, where the Court held unanimously that section 3 of the Preventive Detention Act is constitutional and valid even though it leaves to the “satisfaction” of the executive government the decision of whether to act against any particular person. The learned Chief Justice observed that preventive detention must be based on suspicion, emphasizing that the executive’s satisfaction, not the court’s investigation, is the proper basis for such orders.

In its discussion, the Court observed that preventive detention orders were largely based on suspicion and cited Lord Finlay’s observation in Rex v. Halliday (1) that a court was the least suitable forum for investigating whether the circumstances of suspicion justified restraining a person. The Court then referred to a similarly worded provision of the Central Provinces and Berar Public Safety Act, 1948, noting that the Federal Court, in a unanimous judgment, had stated that the responsibility for making a detention order rested with the provincial executive because it alone was entrusted with maintaining public peace. The Court emphasized that it would be a serious dereliction of that executive responsibility if a court were to replace the executive’s satisfaction with its own judgment and, to that end, investigate the sufficiency of the material on which the executive’s satisfaction was based. However, the Court said, a court could examine the grounds disclosed by the Government to determine whether they were relevant to the object of the legislation, namely the prevention of acts prejudicial to public safety and tranquillity, because “satisfaction” in that context must be based on material of rationally probative value, as expressed in Machindar Shivaji Mahar v. The King (2). These decisions, according to the Court, clearly established that preventive detention was a precautionary police action to be exercised solely by the executive government, whose discretion was final, and that no court of law could review or justify such action except on allegations of mala fides or irrational conduct. The Court further observed that when the power to issue a detention order depended upon the detaining authority’s “satisfaction,” a purely subjective condition, it was wholly inconsistent to allow a judicial enquiry into the sufficiency of the grounds for detention. The Court argued that it would be inconsistent with the scheme to permit a court to examine the grounds in order to enable the detained person to make a representation, since the grounds communicated to the detainee were precisely the “grounds on which the order has been made.” The logical consequence of the respondent’s counsel’s argument, the Court noted, would be to invalidate section 3 of the Act insofar as it made the government’s satisfaction the sole condition of a lawful detention. If clause (5) of article 22 were read as implicitly authorising judicial review of the grounds to ensure they contained sufficient particulars for a representation, the subjective condition in section 3 would conflict with that clause and become void. When this point was raised, counsel replied that the decision in Gopalan’s case (1) on the constitutionality of section 3 required reconsideration in light of the arguments based on article 22, clause (5).

In this case the Court examined whether section 3 of the Act should be reconsidered on the basis of arguments invoking article 22, clause (5) of the Constitution. Although clause (5) had not previously been interpreted from that perspective, it had been the subject of extensive discussion in relation to section 14 of the Act. The Court concluded that the present argument must be rejected because it contradicted the earlier decision. Apart from this consideration, the Court was not persuaded by the merits of the argument. While the Court accepted that, according to the wording of clause (5), the grounds communicated to a detained person are intended to form the basis of his representation against the detention order, it could not accept the argument’s principal proposition that clause (5) envisages an inquiry in which the detained person is formally charged with specific culpable acts or omissions and required to answer them, as highlighted in the citation to Lord Atkinson’s judgment in Rex v Halliday. The Court noted that preventive detention is a precautionary measure that necessarily proceeds on suspicion or anticipation rather than proof, and must be usable by the executive in sudden emergencies on unverified information supplied by police or intelligence officers. When the Government, acting honestly and in good faith, makes a detention order based on such information, even if the particulars are sparse, article 22, clause (5) only obliges the authority to communicate as soon as possible the grounds for the order to the person detained and to give him the earliest opportunity to make any representation based on those grounds. If the authority fulfills this requirement, it has complied with the constitutional procedure, and the detained person cannot claim deprivation of liberty contrary to law. The Court found no language in article 22, clause (5) that would require the communicated grounds to be sufficient, in the view of a court, to enable an “adequate” representation. Moreover, the Constitution expressly denies a person detained under preventive detention the right to be produced before a magistrate or to consult a legal practitioner, as provided by articles 22(1), (2) and (3). The Court recalled the ruling in Gopalan’s case that the Constitution does not entitle a detainee to a hearing before the detaining authority. Consequently, the argument that the right of representation must be effective to the extent of allowing a defence against a formulated charge was rejected.

The judgment emphasizes that the function performed by the detaining authority is fundamentally executive in nature, as indicated by the authorities cited at (1) [1917] A.C. 260, 275 and (2) [1950] S.C.R. 88. This function does not involve the authority undertaking any form of judicial or quasi-judicial inquiry. Consequently, the representation that a detained person is permitted to make to the Government—an entity that, in this context, acts as its own judge—cannot be regarded as equivalent in scope or purpose to a defence presented against a formally framed charge in a court of law. The proposition that the right to make a representation should be rendered effective in such a way that the detainee is enabled to successfully defend himself, and that, for that purpose, the detaining authority must disclose the necessary particulars on the threat of having the detention order set aside, rests on a misapprehension of the true legal position. The most persuasive reason for dismissing this argument lies in the wording of clause (6) of Article 22, which states that “nothing in clause (5)”—that is, neither the entitlement to be informed of the grounds of detention nor the entitlement to make a representation—shall compel the detaining authority to disclose facts that the authority believes should not be made public in the interest of the public. In other words, clause (5) does not impose an obligation on the authority to provide particulars that it is given absolute discretion to either furnish or withhold. It is therefore untenable to argue, in light of clause (6), that the executive is required to communicate particulars that a court of law deems necessary for the detainee to make a representation. The authority cannot be forced to supply information that it possesses unfettered power to decide whether to disclose or refuse. The combined effect of clauses (5) and (6) is, in this view, to require the detaining authority to communicate to the affected person only those particulars that the authority, and not a court, considers sufficient to enable the person to make a representation. It is also noteworthy that the well-known English decision in Liversidge v. Anderson (1) [1942] A.C. 206 recognized a similar privilege as a “very cogent reason” for holding that the phrase “If the Secretary of State has reasonable cause to believe” does not create a justiciable issue regarding the existence of such cause as an objective fact. Viscount Maugham observed that it is undisputed that the Secretary may decline to disclose the information on which he acted when disclosure would be contrary to the public interest, and that this Crown privilege cannot be contested. He further noted that it is not relevant to the question of construction to respond to this argument by suggesting that there are cases in which the Secretary could answer the attack on the basis of such disclosure.

The Court observed that the order of detention could be declared valid without the need to raise the point of privilege. It explained that in many cases the information on which the Secretary of State must act is highly confidential. The Court held that this confidentiality must have been apparent to those who advised His Majesty when the Order in Council was prepared. Consequently, the Court reasoned that the words under consideration cannot be interpreted to mean that the existence of “reasonable cause” is something that may be examined in a court that lacks the authority to draw out the facts which, in the Secretary of State’s view, constitute reasonable cause. The discussion then turned to the interpretation of the terms “grounds” and “representation” as they appear in clause (5). The Court described these terms as having a very wide range of meaning and stated that it was not necessary to give them a narrow definition. It further noted that clauses (5) and (6) are not mutually exclusive; when clause (6) is relied upon, clause (5) does not automatically cease to apply. The Court explained that if the detaining authority withholds material facts under clause (6) but nevertheless informs the detained person of the grounds of detention—grounds that, because of the withholding, must necessarily be vague—this communication still satisfies the requirement to convey the “grounds” on which the order was made. Moreover, any representation that the detainee wishes to make on the basis of those communicated grounds remains a “representation” within the meaning of clause (5). In this way, the Court demonstrated that no single precise connotation can be attached to the words “grounds” and “representation” in clause (5), because in some situations one term may be vague while the other may be inadequate from the detainee’s perspective, and the construction of the clause does not require the two terms to differ in other situations.

The Court also addressed a suggestion raised during argument that clause (5) dealt with two separate and independent matters: first, the communication of the grounds of detention, and second, the provision of an opportunity to make a representation against the detention. It was argued that the communicated grounds need not have any necessary connection to the representation that is permitted. The Court noted that this view implied, by implication, an independent duty on the part of the authority to furnish the detainee with sufficient particulars and details of the accusation, in addition to the explicit duty to communicate the grounds of the order. The rationale for this additional duty, as advanced by counsel, was that without such particulars the detainee could not make an adequate or effective representation against the order. Although the Court acknowledged that the adequacy of the grounds on which the order was based was held not to be subject to judicial review, it observed that there was no reason why the adequacy of the particulars supplied for the purpose of representation should be treated differently. The Court therefore rejected the notion that the separate time-limits attached to the duties under clause (5) indicated a distinct obligation, finding instead that the right to be informed of the grounds and the right to make a representation are naturally linked, and that the grounds communicated are intended to form the basis of any representation.

The Court observed that the additional communication suggested by the provision for representation should not be subject to judicial review. It noted that the argument relied on the different time-limits fixed for the duties imposed by clause (5) on the detaining authority, claiming these limits supported the view that further particulars were not required. The Court found this construction strained and artificial and therefore unacceptable. It explained that the same clause places together the right to be informed of the grounds of detention and the right to make a representation against those grounds, indicating that the communicated grounds are intended to form the basis of the representation, and perhaps even its sole purpose. To argue that, aside from those grounds, the right of representation necessarily implies an additional obligation to furnish detailed particulars, the Court held, would not be a natural reading of the clause but rather an undue extension by implication to fit preconceived notions of fairness. The Court further rejected any reliance on the distinct time-limits for communicating the grounds and for providing the opportunity to represent, stating that the variation in urgency explains the difference. The phrase “as soon as may be” mandating communication of the grounds conveys a higher urgency than the phrase “earliest opportunity” for representation, which the Court interprets as allowing the detained person to use writing and communication facilities when ready and desirous of making a representation.

The Court went on to state that while clause (5) prevents the authority, after issuing the detention order and communicating its grounds, from introducing fresh grounds to justify the order, nothing in that clause bars the authority from supplying further particulars or details relating to the originally communicated grounds. Likewise, the detained person may request, and the authority may provide, more complete particulars when it is able to do so, enabling the person to make a better or further representation. However, the Court observed that in these and similar proceedings the real aim has been to shift the dispute to the court rather than to obtain the necessary particulars. Citing Lord Finlay’s remark, the Court noted that the court is the least suitable forum for investigating matters that are largely matters of suspicion rather than proof, and that relief may be granted without the court possessing all the facts. The Court also referred to several High Court decisions that dealt with the necessity of furnishing particulars of the grounds of detention, but clarified that those decisions were based on various Provincial Public Safety Acts enacted before the Constitution, which expressly required communication of particulars. Because neither article 22 nor the present Act contains an express provision mandating the supply of particulars of the grounds of detention, those earlier decisions do not assist the respondent.

The Court observed that the earlier rulings relied upon were decided on statutes that existed before the Constitution came into force and that those statutes generally required the communication of particulars. The Court held that those decisions could not aid the respondent because neither article 22 of the Constitution nor the Preventive Detention Act contains any explicit requirement that the grounds for detention be disclosed to the person who is detained. The Court noted that a previous decision of this Court in Ishwar Das v. State(1) had examined a situation where the grounds of detention were described as vague and had ordered the release of the petitioner under the Act. It further observed that the short judgment in that case made clear that no detailed arguments on the issue had been considered and that the case had been disposed of on a prima facie view supported by earlier authorities, namely that when the grounds are so broad and indefinite that the detainee cannot make an effective representation, the detainee must be released. The Court, however, indicated that the Ishwar Das judgment cannot be treated as a binding precedent. During the argument, counsel repeatedly urged the Court to zealously protect the liberty guaranteed by the Constitution and to avoid interpreting article 22(5) in a way that would nullify its safeguards. The Court expressed a deep awareness of the reverence the Constitution accords to personal liberty and other fundamental rights, and of the Court’s duty to guard those rights against encroachments by the legislature or the executive. At the same time, the Court emphasized that the Constitution itself authorises preventive detention, deprives the detained person of the right to a trial before a court and the right to consult or be represented by counsel of his choice, and provides only limited procedural protections. Consequently, the Court said that its role was limited to interpreting the language of article 22(5) in its ordinary meaning, in a manner consistent with the purpose, nature and scheme of the preventive-detention scheme authorised by the Constitution. In that interpretive exercise the Court concluded that the power to decide whether the grounds disclosed are sufficient for the detainee to make a representation lies entirely with the executive authority, not with the judiciary. While acknowledging the persuasive appeal of arguments that stress the individual’s liberty, the Court cautioned against extending judicial jurisdiction beyond its legitimate limits.

The Court further explained that the appeal before it arose from a judgment of the Bombay High Court and raised a crucial question as to whether the grounds for an order of detention under the Preventive Detention Act, 1950, were sufficient. The Court pointed out that answering this question required a correct construction of clauses (5) and (6) of article 22 of the Constitution, which have been reproduced in section 7 of the Act. The Court noted that a similar issue had been raised in another petition before this Court by one hundred detainees challenging a decision of a Calcutta High Court bench in Case No. 24 of 1950 (Tarapada and Others v. State of West Bengal)(1). The Court indicated that its own view on the true meaning and effect of the relevant constitutional provisions and the Act differed from that of the majority of its colleagues, and that it expressed this view with a degree of humility, recognising the high regard in which it held their opinions. Ultimately, having examined the language of the Constitution and the Act, the Court concluded that it was not within the judicial province to evaluate the adequacy of the grounds for the purpose of permitting a representation, a function that the executive alone must perform.

In this appeal the Court considered the provisions of article 22 of the Constitution that have been incorporated into section 7 of the Preventive Detention Act. A similar issue had been raised in another case decided by this Court, involving one hundred detenus who appealed against an order of a Bench of the Calcutta High Court in case number 24 of 1950, Tarapada and Others v. The State of West Bengal. The opinion expressed by the learned judge in the present case differed from that of the majority of his fellow judges, and he acknowledged that his view was offered with a certain degree of hesitation because of the high respect he held for their opinions.

Section 3(1)(a) of the Act provides that the authority concerned may issue an order of detention only when he is satisfied that, for the purpose of preventing a person from acting in a manner prejudicial to one or more of the matters referred to in sub-clauses (i), (ii) and (iii) of clause (a), such an order is warranted. The material that will create the required satisfaction in the mind of the authority under section 3(1) depends upon the training, temperament and habitual mental approach of the individual who is the authority making the detention order. One type of authority may require very precise and complete information, almost amounting to legal proof, before reaching the necessary satisfaction. Another type of authority, equally honest, may be satisfied by much more limited information that might appear vague or even nebulous to others. When the authority belongs to the first category, the “grounds” on which he makes the order will necessarily be detailed and specific, and when those grounds are communicated to the deten­u, they will plainly enable the deten­u to understand the reasons for his detention and to prepare a representation against it.

The Court was, however, concerned with the “grounds” that might be relied upon by an authority of the second type, who may form his satisfaction from conclusions drawn from information that is not precise or ample, yet which, given his source of information, he honestly feels safe to rely upon. The Court referred to such grounds as “vague grounds”. The pivotal question before the Court was whether an order of detention made in good faith on the basis of such vague grounds could be considered valid.

In this case, the counsel for the detenu raised the question of whether an order of detention could be void from the outset if the grounds on which it was made were so vague that, when communicated to the detenu, they failed to enable him to make a representation against the order. The argument was presented that Article 22 (5) imposes two mandatory requirements: first, the authority that issues the detention order must, as soon as practicable, communicate to the detenu the specific grounds on which the order was based; second, the same authority must afford the detenu the earliest opportunity to make a representation against that order. The two requirements were described as being inseparably linked. The purpose of communicating the grounds, according to the argument, was to give the detenu sufficient material to formulate a meaningful representation. Consequently, the combined effect of the constitutional provisions was that the communicated grounds must contain enough particularity to enable the detenu to make a representation. If the grounds communicated were merely vague and devoid of necessary particulars, the detenu would be unable to respond meaningfully, and therefore no proper representation could be made on that basis. In such a circumstance, the argument continued, the order of detention could not have been validly made, because it was the very grounds on which the order was founded that had to be communicated to the detenu for the purpose of representation. The argument thus implied that the quality or attribute of the grounds themselves must satisfy the requirement that they enable a representation. The assessment of whether the grounds satisfy the requirements of Article 22 (5) was said not to be a matter of the subjective opinion of the authority that issued the order, but rather an objective test: the grounds must be such that the detenu can make a representation, which makes the issue capable of judicial review. If the court were to find that the vagueness of the communicated grounds precluded any representation, the court would also have to hold that the detention order based on such vague grounds could not be sustained. The argument then proceeded to contend that the provisions of the Preventive Detention Act, 1950 (Act IV of 1950), which were enacted after the Constitution came into force, must be interpreted in the light of Article 22 (5) as explained above. Accordingly, the satisfaction of the authority referred to in section a of the Act could not be a purely subjective satisfaction; it had to be founded on grounds that, when later communicated, would enable the detenu to make a representation, thereby imposing an objective standard on the satisfaction required by the statute.

In this case, the Court considered whether section 3(1)(a) of the Preventive Detention Act should be interpreted as if the phrase “on grounds which, when communicated to him, will enable him to make a representation such as is mentioned in section 7 of this Act” were inserted after the words “if satisfied with respect to any person” and before the words “that with a view”. The Court explained that if such insertion of words were not allowed by the established rules of statutory construction, then the effect would be to hold that, to the extent section 3 makes a detention order dependent on the authority’s subjective satisfaction, that provision would be unconstitutional because it conflicts with article 22(5) of the Constitution and the purpose that article embodies. The Court noted that although this line of argument appears attractive, a closer examination shows it to be unsound. The Court then turned to the historical context. It observed that before the Constitution came into force, every province had enacted laws to preserve public security, and those laws contained provisions substantially similar to those found in section 3 of the 1950 Preventive Detention Act. Numerous decisions had held that, in the absence of bad-faith, and provided that the grounds on which the authority based its satisfaction bore a reasonable relation or relevance to the object of the legislation, the authority’s satisfaction was a purely subjective assessment that could not be examined by any court. The Court cited the Federal Court decision in Machindar Shivaji Mahar v The King as an illustration of this principle. The Court further explained that vagueness of the grounds on which an authority’s satisfaction is founded does not have the same effect as irrelevancy of those grounds, unless the vagueness itself provides strong evidence of bad-faith. When the grounds are relevant to the legislative purpose and no bad-faith is shown, mere vagueness does not defeat the authority’s satisfaction. Because the satisfaction is subjective, the Court held that it cannot take upon itself the task of judging whether the grounds are sufficient. The Court acknowledged that those earlier decisions were rendered before the Constitution and before the enforcement of fundamental rights, but it observed that the same principles were reaffirmed by every member of the Court in the later Gopalan case, which was decided after the Constitution became operative. In Gopalan, the Court unanimously held that under section 3 of the Preventive Detention Act, the authority’s satisfaction was purely subjective, could not be questioned in the absence of proof of bad-faith, and therefore the provision was not unconstitutional. The Court concluded that, although the present arguments differ in form from those presented in Gopalan, the difference is immaterial because the arguments lack force, being grounded on premises that have already been rejected.

The Court observed that the contention that an order must be based on grounds that, when communicated, are sufficiently full and precise to enable the detained person to make a representation was unsupported by any authority. It stated that no justification existed for such an assumption. Moreover, the Court noted that its earlier holding that section 3 of the Preventive Detention Act rendered the authority’s satisfaction purely subjective, and that this provision was not unconstitutional, directly undermined the argument advanced earlier. The decision in Gopalan’s case confirming the validity of section 3 made the argument untenable. The Court then considered the second line of argument, which held that even if the original detention order was not invalid because the authority’s satisfaction was subjective and the court could not assess the sufficiency of the grounds, the detention would become unlawful if, after the grounds were communicated, they were found to be vague and lacking in particulars, thereby making it difficult for the detainee to file a representation. This argument asserted that while vagueness of the grounds could not be questioned at the initial stage of the order, the same vagueness, once communicated, could render the continued detention illegal if it impeded the detainee’s ability to make a representation. The Court referred to article 21, which provides that no person shall be deprived of life or personal liberty except according to procedure established by law. It reiterated, as explained in Gopalan’s case, that “procedure established by law” means procedure enacted by the legislature, that is, statutory procedural law, and does not incorporate any rule of natural justice. The Court explained that article 21 therefore permits deprivation of life or liberty only when such deprivation follows a legislative procedure. The Constitution’s framers, having set this requirement, also inserted additional procedural safeguards that must be observed in any law dealing with preventive detention; these safeguards are enumerated in article 22. A careful reading of the clauses of article 22 shows that the constitutional procedural requirements apply after a detention order has been issued under section 3 of the Preventive Detention Act, 1950. Consequently, the detention order, being made in accordance with a law enacted by the legislature and not inconsistent with any provision of Part III of the Constitution, satisfied the procedural requirement at the time of its issuance.

To the point at which a detention order has been issued, the order may not be challenged unless there is proof, either direct or indirect, of bad faith on the part of the authority. Consequently, the Court had to examine whether a detention that was initially valid becomes unlawful because of later failure to comply with the procedural requirements specified in clause (5) of article 22. If such non-compliance occurs, the detained individual, from that moment onward, must be regarded as being deprived of liberty in a manner that is not in accordance with law and therefore becomes entitled to release. The Court noted the citation (1) [1950] S.C.R. 88 in this context. The Court also acknowledged that there is a relationship between the two components of article 22(5), namely the requirement to communicate the grounds for the detention order and the provision allowing the detained person to make a representation. The Constitution mandates that the grounds for a detention order be communicated for a specific purpose: to inform the detainee of the reasons for his detention. By receiving the grounds, the detainee can first determine whether those grounds are relevant to the objective that the Act seeks to achieve. If the grounds are irrelevant, they constitute no legitimate basis and cannot justify the detention; such irrelevance serves as strong evidence of bad faith by the authority, rendering the order invalid. Moreover, disclosure of the grounds informs the detainee of the category into which his alleged activities have been placed and indicates whether he may obtain the benefit of a review by the Advisory Board. Finally, knowing the reasons for detention assists the detainee in preparing his representation, as also provided by the latter part of clause (5). Nevertheless, the Court emphasized that the existence of this relationship does not extend to requiring the communicated grounds to be a formal indictment or a detailed pleading, nor does it demand that the representation take the form of a defence or a written statement addressing specific charges. The concept of a trial does not belong to the law of preventive detention. The fact that clauses (1) and (2) of article 21 are inapplicable to preventive detention clearly excludes any trial before a tribunal. Accordingly, the grounds communicated generally consist of the conclusions reached by the appropriate authority regarding the suspected activities of the particular person, and not a formal charge or detailed case.

In this case, the Court observed that when the grounds for detention are communicated to the detained person, those grounds should enable the detained person to make a representation, because the person can then refer to his actual conduct and assert that all of his actions are innocent and cannot give rise to the suspicion expressed in the grounds. The Court held that to say that clause five itself requires that the grounds be of a kind that will enable the detained person to make a representation amounts to reading into clause five a requirement that is not present. Such a view merely restates the first argument in a different form and is therefore fallacious. Firstly, clause five does not expressly command that the authorities must communicate grounds that are sufficient to enable the detained person to make a representation. Secondly, the decision in Gopalan’s case (1) undermines this argument; that decision held that the sufficiency of the grounds is not justiciable at the initial stage when the order is made. Consequently, it is illogical to suppose that the Constitution intends to make the sufficiency of the same grounds justiciable only when they are communicated to the detained person. As the Court reiterated, an order made on the basis of vague grounds remains valid so long as the vagueness does not demonstrate bad faith. Under clause five, the authority is required to communicate the very grounds on which the order was based. This communication informs the detained person what considerations influenced the authority in issuing the order. If the original grounds were vague, then it is those vague grounds that must be communicated, because the order was founded upon them. This is the clear requirement of the first part of clause five. Because the requirement is express, the Court concluded that an implication that the communicated grounds must be sufficient to enable a representation cannot be read into the clause, for such an implication would contradict the express requirement. If the order had been based on vague grounds but the authority were required to communicate precise, well-formulated grounds sufficient for a representation, then the communication would not reflect the grounds on which the order was made but would exceed what the clause expressly demands. The express provision therefore excludes any inconsistent implied provision. Moreover, clause six of article twenty-two permits the authority to claim privilege against disclosure of facts in the public interest. Non-disclosure of facts inevitably makes the communicated grounds extremely vague and lacking in particulars. The Court pointed out that if the construction of clause five advocated by the detained person’s counsel were correct, then the vagueness resulting from the non-disclosure of facts under clause six would entitle the detained person to be released, because such vagueness would also render a representation impossible or extremely difficult. That outcome would defeat the purpose of the privilege granted to the authority by clause six, which cannot be the intention.

In this case, the Court observed that the privilege provided in clause (6) of article 22 would be wholly meaningless and ineffective if it could be invoked only at the expense of releasing the detainee, a result that could not have been intended. Accordingly, the Court held that the vagueness of the grounds for detention that may arise from the non-disclosure of facts under clause (6) does not render the original detention order invalid merely because the detainee is unable to make a representation on the basis of those vague grounds. By invoking the privilege in clause (6), the authority would be able to defeat any challenge to the sufficiency of the grounds, and there is no reason why the same vagueness should be treated differently when the privilege is not claimed. The Court emphasized that clause (5) cannot be interpreted to have one meaning when privilege is asserted and a contrary meaning when it is not; the initial order of detention is not subject to judicial review, and the claim of privilege is likewise not justiciable. Therefore, the Court found no justification for assuming that the adequacy of the grounds for making a representation was intended to be subject to objective scrutiny, since the provision appears to be designed to operate on a purely subjective basis. The argument was then restated in a modified form. Clause (5) of article 22 imposes two duties on the authority that orders detention: first, the authority must, as soon as practicable, communicate the grounds on which the order was made; second, the authority must provide the detainee with the earliest opportunity to make a representation against the order. The Court held that even if the grounds are vague, the detention order remains valid and cannot be challenged in any court. Communicating such vague grounds satisfies the first duty imposed by clause (5). Regarding the second duty, the Court noted that the authority is required to give the detainee the earliest chance to represent himself, and if the grounds are vague, the Court rejected the proposition that this second duty implicitly requires the authority to cure the vagueness by supplying additional particulars, because without those particulars the detainee would not have a genuine opportunity to make a representation. The Court could not accept this line of reasoning. Under the first part of clause (5), the grounds must be supplied “as soon as may be,” and the phrase “as soon as may be” must be understood to commence from the date of detention.

In this case, the Court examined the meaning of the phrase “earliest opportunity” contained in the latter part of clause 5 of article 22. The Court first asked from which starting point the period described by “earliest opportunity” should be measured. If that period were to begin on the date of detention, then both the period for supplying the grounds in the first part of clause 5 and the period for granting the earliest opportunity to make a representation would run together. Under such an interpretation, there would be no separate occasion on which additional particulars could be supplied after the initial communication of the grounds.

The Court, however, found that the natural meaning of the latter part of clause 5 points to a different starting point. The Court held that the period for the “earliest opportunity” should commence when the detained person, the detenu, actually expresses a desire or intention to make a representation. The right to make a representation belongs to the detenu, and whether to exercise that right is wholly his choice. Consequently, the earliest opportunity arises only after the detenu has signaled his intention to submit a representation. At that moment, the authority’s duty is to provide the detenu with all physical facilities required to carry out his wish, such as paper, pen, ink, and a means to forward the completed representation with proper dispatch.

The Court noted that clause 5 does not expressly require the authority to furnish further particulars. If the grounds communicated under the first part of clause 5 are already clear and sufficient for the detenu to prepare a representation, then providing the earliest opportunity merely means supplying the necessary material assistance. In such circumstances, there is no need for any additional or improved particulars. Conversely, if the authority believes that the communicated grounds might be inadequate, the Court rejected the notion that the authority should wait for the detenu’s expression of intent and then decide whether to supply further details. The authority cannot simply say, “wait a little; I think the grounds are clear, but I will give you more particulars later if needed,” because the clause itself does not envisage a second communication of particulars. The Court concluded that clause 5 imposes no constitutional duty on the authority to issue additional specifics to eliminate any vagueness, and the failure to do so does not violate any fundamental right.

The Court observed that the suggestion that an authority should tell a detainee, “If you think the grounds communicated to you are insufficient for making a representation, I will give you further and better particulars so that you can make the representation,” is unrealistic on its face. The Court explained that a plain reading of clause (5) of Article 22 does not provide any basis for assuming that the provision contemplates a second communication of particulars, whether under the first part or the second part of the clause. This interpretation, however, does not prevent the authority from furnishing particulars either on its own initiative (suo motu) or in response to a request made by the detainee. The essential point made by the Court is that clause (5) does not create a constitutional duty on the authority to supply additional particulars for the purpose of removing any vagueness in the grounds or to enable the detainee to make a representation. Consequently, the failure to provide further particulars does not amount to a breach of any fundamental right. The Court rejected the argument that interpreting clause (5) in this manner would render the clause nugatory and would therefore guarantee no fundamental right at all. It was respectfully disagreed with, on the ground that such criticism was not well founded. Even if the communicated grounds are vague, the Court held that they remain useful to the detainee in the several ways earlier described, and therefore the right to be informed of the grounds on which a detention order is based is a valuable right that has been recognised as a fundamental right. Similarly, the right to make a representation is also a valuable constitutional right. Both rights continue to remain intact, and any inadequacy of clause (5) of Article 22, when correctly interpreted, for the protection of detainees’ liberty is merely an unfortunate circumstance for the detainees, not a constitutional defect.

The Court further emphasized that the Constitution, as the supreme law given by the people, must be upheld and obeyed irrespective of whether one likes its provisions, restrictions or necessary implications. The judiciary’s role, according to the Court, is limited to drawing the attention of Parliament to any lacuna or defect that may exist in the Constitution or in the governing statute, so that such gaps can be filled or remedied through the proper constitutional process. The Court noted that several earlier decisions of various High Courts, decided under provincial statutes that existed before the Constitution, had ordered the release of detainees on the ground that the reasons for detention were vague. Those decisions, however, are distinguishable because the statutes then in force required not only the communication of the grounds but also the communication of detailed particulars. The omission in the Constitution of a requirement to communicate such particulars, in addition to the grounds, is a significant omission that may have been deliberate. Apart from this observation, the Court held that those earlier High Court decisions do not bear on the proper interpretation of the Constitution or of the Preventive Detention Act. Consequently, the Court concluded that the existing provisions of clause (5) of Article 22, when read correctly, satisfy the constitutional requirements and do not compel the authority to supply additional particulars, and the non-supply of such particulars does not infringe any fundamental right of the detainee.

In the matter of Iswar Das v. The State (1), the Court observed that the issue had not been raised or argued because the earlier judgment had already made the point clear. The Court then stated that, based on the foregoing discussion, it was of the opinion that the grounds communicated to the detenu matched purposes of the Act and that no evidence of bad faith existed. Consequently, the Court held that the duties imposed on the authorities by article 22(5) of the Constitution, which are reproduced in section 7 of the Preventive Detention Act, had been fully satisfied. The Court added that, even according to the majority view of other judges, it could accept that the additional particulars supplied with the original grounds were sufficient to enable the detenu to make a representation. In the Court’s view, there was therefore no violation of the detenu’s fundamental rights. Accordingly, the Court decided to allow the appeal, set aside the judgment of the Bombay High Court, and grant relief to the appellant. The order concluded with the statement that the appeal was allowed and identified the counsel for the appellant and the counsel for the respondent. This decision therefore reversed the earlier judgment of the Bombay High Court and consequently restored the detenu’s liberty.